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Commonwealth v. Duart

Supreme Judicial Court of Massachusetts, Dukes

August 17, 2017

COMMONWEALTH
v.
PETER J. DUART.

          Heard: May 4, 2017.

         Indictments found and returned in the Superior Court Department on April 5, 2010.

         A motion for a new trial, filed on February 18, 2015, was heard by Charles J. Hely, J.

         The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

          Afton M. Templin for the defendant.

          Elizabeth A. Sweeney, Assistant District Attorney, for the Commonwealth.

          Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, Budd, & Cypher, JJ.

          HINES, J.

         Following a jury-waived trial in the Superior Court, the defendant, Peter Duart, was convicted of rape, subsequent offense, G. L. c. 265, § 22 (b); and indecent assault and battery on a person age fourteen or older, as a lesser included offense of assault and battery on a person with an intellectual disability.[1] The judge sentenced the defendant to from ten years to ten years and one day in State prison on the rape and subsequent offender convictions, and to a probation term of three years on the indecent assault and battery conviction.

         In a motion for a new trial pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), the defendant challenged the convictions on the grounds that (1) his jury waiver was neither knowing nor intelligent because the trial judge did not disclose that his son was employed as an assistant district attorney in the office of the district attorney for the Cape and Islands district, which prosecuted the indictments; and (2) defense counsel was constitutionally ineffective in failing to disclose the judge's relationship to the prosecutor's office in counsel's advice on the strategic choice to waive the right to a trial by jury. A different judge held an evidentiary hearing and denied the motion in a written decision. The defendant filed a timely appeal, and we transferred the case to this court on our own motion.

         We conclude that the trial judge's failure to inform the defendant of his familial relationship with a member of the prosecuting attorney's office during the jury-waiver colloquy was not error, and thus the denial of the defendant's motion for a new trial on this ground was not an abuse of discretion. As to the defendant's claim of ineffective assistance of counsel, we conclude that although defense counsel's failure to inform the defendant of the trial judge's familial relationship with a member of the prosecuting attorney's office constituted behavior "falling measurably below that which might be expected from an ordinary fallible lawyer, " Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), counsel's failure to do so was not prejudicial. Therefore, we affirm the denial of the defendant's motion for a new trial.

         Background.

         We summarize the relevant facts on the motion for a new trial as found by the motion judge, supplemented as necessary with uncontested facts from the motion hearing. See Commonwealth v. Stephens, 451 Mass. 370, 372 (2008). In April, 2010, the defendant was indicted by a Dukes County grand jury on charges of indecent assault and battery on a person with an intellectual disability, subsequent offense, G. L. c. 265, § 13F; and rape, subsequent offense, G. L. c. 265, § 22 (b). The alleged offenses occurred at the victim's apartment in the early morning hours of January 30, 2010.

         Prior to trial, the defendant filed a motion for a change of venue, which the Commonwealth joined, predicated on the concern that the defendant could not receive a fair trial from a Dukes County jury. Specifically, the defendant contended there would be a "serious risk" that some of the jurors would have knowledge of the defendant's previous conviction, which had garnered substantial news media attention and notoriety on Martha's Vineyard, where the new indictments were set to be tried. The judge denied the motion without prejudice, noting that he would be willing to reconsider the order if seating a jury became "impractical."

         In light of the denial of the defendant's motion for a change of venue, defense counsel discussed with the defendant the possibility of waiving his right to a trial by jury. Following consultation with his attorney, and at the defendant's request, the judge held a jury-waiver colloquy with the defendant on October 4, 2010. During the colloquy, the defendant indicated that he had had sufficient time to consider the waiver, and signed and filed a written waiver of trial by jury. The judge accepted the waiver, concluding that it was made ...


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